Tuesday, June 7, 2016

The History of NRS 202.3673 and Open Carry in Public Buildings

Editor's Note: This article deals largely with NRS 202.3673. For a general overview of firearms in public buildings, follow this link to NevadaCarry.org

NRS 202.3673, a law which prohibits concealed firearm permitted
from possessing firearms in certain buildings, is a confusing law at first
glance. It has not been helped by a multitude of changes since its creation in
1995. Despite common misunderstandings by the public and government alike, the
law does not prohibit openly carried
firearms in public buildings.

The law currently prohibits firearms in public buildings
with signs or metal detectors at each public entrance, at airports, and
schools, colleges/universities, and childcare facilities (the latter having
their own law, NRS 202.265).
Openly carried firearms are not prohibited in most state and local public
buildings. In fact, it seems to be the unwritten understanding that open carry cannot be strictly regulated as it is
the constitutionally protected form of carrying arms. Rather than an oversight
or a loophole, this is deliberate obedience to the constitutional right to bear
arms, recognized not only by Nevada, but by most states.

In 2015, the legislature faced this question and the
legality of open carry was
affirmed by the Legislative Counsel Bureau. It is important to note that
the legislators, neither Republican or Democrat, moved to enact a ban, but
rather chose to repeal and prohibit local firearm regulations
with SB 175/240. They understand that constitutionally, they do not have the ability
to legislate on that matter.

An Idaho
case, Re: Brickey,
threw out a city ordinance that banned the carrying of any deadly weapon in any
manner, openly or concealed. The state Supreme Court found that this was unconstitutional,
in light of Idaho’s constitution, which explicitly authorizes the regulation of
carrying concealed weapons only.

Nevada has never had a law prohibiting openly carried firearms
anywhere or within public buildings. The only blanket provision under state law
is NRS
202.265, which applies to school grounds, and meetings of the legislature, NRS 218A.905.
Prior to 1995, NRS 202.3673, firearms in public buildings, did not exist within
the statutes. As far as research indicates, there was no prior law on the
topic.

Before 1995, Nevada was a may issue state for concealed firearm permits, at the sole
discretion of the sheriff to issue or not. Open carry was the only method
available to the public at large in some counties. In 1995, Nevada became a
shall issue state and a perceived need to regulate firearms in public buildings
was felt, leading to the establishment of 202.3673. Interestingly, 202.3673
only prohibits firearms in public buildings by concealed firearm permittee. For someone to conceal without a
permit, it would be a felony violation of NRS 202.350,
but not of 202.3673.

The 1995
amendment banned concealed firearms in virtually every type of public
building (SB
299). In 1997, the law made a minor change: "must" to
"shall" (AB 141). Then, in
1999, the law changed to only locations with signs and metal detectors at
each public entrance, plus airports, schools, and colleges (AB
166). This change stood until 2007. In
2007, the current iteration of the law was enacted pursuant to SB
354, which also affected NRS 202.265 which bans firearms at schools. a
provision was added to cover childcare centers after an unprofessional bounty
hunter raided a daycare and scared the children.

Part of the incorrect signage and the confusion in
institutional memory can be blamed on the changes to the law over the years
coupled with a misunderstanding that open carry is indeed legal and that people
do actually carry that way. While many ill-informed government employees have
had ‘no guns’ signs posted and many stating a total prohibition remain, other
government agencies, most notably the DMV, have changed their policies,
educated staff and security, and have signs correctly stating that only concealed firearms are prohibited.

William Russell, ca. 1890s

For a long time, well up until the mid-20th
Century, concealed carry was considered dishonest and something only criminals
did. Many laws prohibited concealed carry because of its association with
criminals, which carries over in one form of regulation or another to many
states. Researching original textual examples of this bias is not complete, but
many examples from newspapers and literature of nearly more than a century old
malign concealed carry.

Perhaps as modern communications and law enforcement
developed, a larger population led to a decrease in the ‘Wild West’ myths.
People felt safer and didn’t feel a need to be armed. Guns, not just concealed pistols,
were seen as something bad. Instead of being a form of protection, as a
majority of Americans seem them today, carrying a gun was seen as outdated,
paranoid, or criminal. It wasn’t until the shall issue wave of the 1990s that
opinions began to change and concealed firearm permits became popular. Open
carry naturally declined as people simply didn’t want others to know they were
carrying guns, as if someone was going to judge them for it or be treated
differently. In fact, that’s one of the reason most people choose not to openly carry a firearm.

Even so, open carry has been popular in the western states
and Nevada. Even California has rural open carry and had loaded open carry
until a few years ago. Many native Nevadans have been openly carrying firearms
since they were teenagers here even in North Las Vegas without once having an
issue.

Other States

In other states, the laws vary, but in the majority of the
nine states as part of our sister site, Frontier
Carry, you find that open carry is often protected and relatively
unregulated. The western states were very similar, all on the expanding
American frontier and facing the same set of challenges common to anyone who
has watched a western. All entered the union as either states or territories in
the same general period of time. Since the similarities between states were so many,
many constitutional and statutory provisions are the same, sometimes word for
word, and the considerations behind them are built on the same foundations of
logic.

Only Arizona, Colorado, and Montana allow local control over
openly carried firearms in most public buildings or areas, while Washington has
a few more prohibited locations, but is largely unregulated. Seattle had to end
its challenge to guns in their libraries because of the strictness of Washington’s
state preemption law which also ended a ban on guns in local parks.

Utah has the fewest prohibited areas, apparently in the
union. Utah law allows for concealed or open carry, with a permit, in virtually
every place save for courthouses and detention-type facilities, including
schools and universities/colleges. Utah and Arizona (where local governments
can ban guns in public buildings) require secure storage at public buildings
where guns are prohibited. Wyoming only bans openly carried firearms in public buildings
or the state capitol.

Idaho, Nevada, and New Mexico, have essentially similar laws
and outright bans of local regulation on open carry. Further afield and in a
similar vein, Michigan has a similar preemption law, which lead to an overturn
of the Lansing Capitol Area Library District’s ban on firearms.

Interestingly, Colorado is a reverse of most frontier states
and allows for municipalities to ban open carry, but not concealed carry,
except in public buildings with security screening and metal detectors. Last
year, the Denver Science Museum had to change its policy banning concealed
firearms because it lacked metal detectors and security screening as required
by law. Denver, under questionable state Supreme Court rulings, bans open carry
wholesale, the only municipality to do so.

However, because of the different attitudes and experiences,
one finds interesting results between open carry (which cannot be strictly
regulated) and concealed carry. For instance in Montana, one can openly carry a
gun into a bank, but it is illegal to carry a concealed firearm into the bank,
even with a permit. That leads to a lot of misunderstandings because businesses
don’t know the laws and police are under-educated on the legality of open carry.

Changes Need to End
Abuses

The purpose of this article is not to detail the abuses of
the right to bear arms by public agencies. However, the lack of understanding
about the armed public and the need for effective self-defense bears
addressing. An outdated understanding of concealed carry and the propensities
of legally armed citizens should not be permitted to be part of state law. Nor
should rogue government employees with connections in Carson City or the court
system be allowed to further trample citizen’s gun rights because citizens took
a stand against their petty tyranny.

Under Nevada law, NRS 202.3673 does not prohibit openly
carried firearms inside jails, police stations, prisons, or courthouses, though
it would ostensibly be legal to prohibit firearms in controlled, non-public
areas except by authorized personnel. One can even legally openly carry a gun
into a courthouse, although without a doubt, security or the bailiffs will stop
the person anyway (and they have). While the courts’ position is justified, why
must they disobey the laws they enforce in the same building?

The only argument that can be made to prohibit legally
possessed firearms by law abiding citizens in certain locations are based upon
actual, verifiable threats, or a past history, of violence coupled with the
real means to stop a violent attacker (armed security). Examples would be
courthouses, jails, prisons, mental hospitals, and high-value terrorist targets
like the Hoover Dam. All feature armed security and/or police and have security
screening. Such locations should be mandated to provide secure storage for
firearms. Utah is a successful example of this.

Actual need and means to ensure public safety are the only
grounds for ever banning someone who can legally carry a gun from doing so and
thus protecting themselves. This is a fair balance between a legitimate need to
keep guns out of the hands of someone plotting violence while respecting both
the right to keep and bear arms, while not abusing the logic of the law.

A public building is
not some inherently safe space where violence will not happen and legal gun
owners do not, as a general rule, present a danger for carrying guns. Examples
from private property similar to public buildings show there is no real danger
from an armed citizenry. No one, having completed jury duty or filing a
restraining order, should have to walk through downtown Las Vegas back to their
car parked at the city garage on Fremont Street unarmed if they choose not to,
simply because security will not permit open carry or provide safe storage.

Neither should a concealed firearm, carried legally, be
treated differently than open carry. American’s attitudes on concealed carry
have changed. Concealed carry is the preferred method of carry and is no longer
associated with criminality. A criminal will carry a concealed weapon without a
permit or into a public building regardless of any law. Mothers, fathers, and
good citizens should not be disarmed simply because a public agency disagrees
with that person’s chosen method of carry.

Rather than attempt to outright ban firearms in public
buildings, which would be wholly unconstitutional on a state and federal basis,
NRS 202.3673 should be amended to prohibit firearms in only courthouses, mental
institutions, and the non-public, controlled areas of jails and prisons.
Additionally, safe storage lockers or a ‘gun check’ should be mandated at the
entrance to all such locations.

Legislative History

SB 299, 1995

NRS 202.3673 was enacted in 1995 with the passage of SB 299,
Nevada’s shall issue concealed carry
law. While the record leaves little to no mention, the second reprint of the
bill shows that it was amended to incorporate 202.3673’s prohibition on carrying
concealed firearms in public buildings. Later testimony indicates there was
some concern that licensed and background checked citizens would create some
sort of heightened threat of violence, which over 20 years of experience has
shown to be false.

Apparently, open carry, which was the method available to
any Nevadan who could possess a firearm, was not a worrisome concern for the
legislature at the time, so there was no prohibition of it. Many of the
legislators were life-long Nevadans and many from rural areas, so even if they
hadn’t experienced open carry first hand, it was mentioned in the hearings.

"Mr. Hertz [Chairman, Douglas County Chapter of
American Pistol & Rifle Association]
stated he believed there were sheriffs in Douglas and other counties '...who
are denying an application based on the constitution which gives the people the
right to carry a gun openly.'" (SB 299, 4/21/95
Sen. Jud. Com.)

The NRA representative at the time stated the organization’s
then-current stance on open carry:

“Mr. Griisser responded it is the society we live in
today. If a gun is carried on your hip
walking down the streets of Las Vegas or Reno, any city, there would be undue
stigma attached. Mr. Griisser stated
this may be the West, but it certainly is not the wild West. Mr. Griisser noted he lived in Phoenix and if
he were to carry open there, the gang bangers would try to provoke an
incident. Mr. Goldwater surmised the
deterrent effect is enhanced by having a concealed weapon, but it is
exacerbated when it is out in the open.” (6/22/95 Asm.
Jud. Com)

Clearly, there was no concern about a person who openly
displayed to the public that they were armed, just as there was not in 2015.

“[Assemblyman Lynn Hettrick] The intent of the existing
language was to make those buildings safer and he argued the opposite was true.
He noted statistics proved permittees were not the source of firearm related
violence in public buildings. He opined the language increased the risk of
crime in a public building because most criminals would not go to a private
business or home where there might be a person proficient in the use of
firearms. A criminal would most likely go to a public building where, by
existing state law, you would be guaranteed a person was not carrying a weapon
and that did not make sense to him.

“Mr. Hettrick thought, since statistics proved most CCW
permittees were not a safety issue, most building administrators would add
metal detectors or post signs so it would extend the deterrent and safety
factor of CCWP law to public buildings, and he believed it should. He addressed
those public entities who felt the provision would require them to post signs
on all their buildings, and reminded them national statistics proved their
buildings would be safer if they allowed legal permittees to carry. He stressed
the only people who would not obey the law would be people who carried
illegally. Mr. Hettrick indicated if metal detectors or signs were used, by
adding the option in subsection (b), section 5, regarding obtaining written
permission, a deterrent was added because a potential criminal going into a
public building would not know if a person had permission to carry inside the
building. Adding the right of permission extended metal detectors and posted
signs as right of protection.”

“Assemblyman Hettrick noted that just like any public
building, except for the [terminals], which are federally regulated, […]. He
said a review of the statistics shows a public building is safer when CCWP is
allowed. He expressed concern that if exemptions are made, it could get out of
hand. He said the statistics on 30 states that have CCWP show only 4 states
have restrictions on airports; the rest of the airports are open public
buildings. Assemblyman Hettrick emphasized he did not see a need to exempt
airports. He suggested the people on the aviation board need to see the
statistics, and then they would realize the airport would be safer if CCWP were
allowed, not more dangerous.

“Ivan R. Ashleman, II, Lobbyist, McCarran International
Airport, and Clark County, stated the crowds at the airports look like a mob
scene, it makes it difficult to post signs that will be seen, let alone read.
He said for example, the numerous large ‘Stand to the Right’ signs posted along
the people walkways, plus constant public address announcements, and people are
still all over the walkways; the general public pays no attention. He stressed
that is why the aviation board believes the signs prohibiting CCWP will be
ineffective; and if they are boarding a flight, they will have to surrender the
firearm anyway.

“Senator Care commented he has lived in Las Vegas since 1979
and cannot recall any incident at McCarran International Airport that involved
a firearm. Mr. Ashleman responded security routinely takes firearms from people
at the gates, as well as other types of weapons. He noted the airport has a lot
of security and does not experience a lot of crime problems.

“Chairman Washington wondered since statistically there is
little problem at the airports, would it be better to allow the counties to
deal with the CCWP and public buildings issue at the local level in placing
signs and developing ordinances. Assemblyman Hettrick emphasized it could get
out of hand to allow each county to establish ordinances[emphasis
added].[…] He said what people seem
to not understand is those who get a permit feel some need for personal safety.
The permittee is not going to do anything to lose that permit, and that is why
these public buildings are ultimately safer if the CCWP holders are allowed to
go in and out of the buildings. He stressed this bill will do nothing to
adversely affect safety in public buildings.

“Assemblyman Hettrick noted there is nothing in this bill
that prevents the airport from putting up a sign right now. He said if the
contention is nobody reads signs, then why bother with any signs. He called
attention to the realization that legal people are honest people.”

SB 354, 2007

This bill was intended to strengthen the prohibition of
firearms on school campuses by changing the violation from a gross misdemeanor to
a felony. This was as a result of an increase of children bringing guns to
school. Democratic Assemblywoman Debbie Smith was concerned over an incident with
bounty hunters at a daycare. Her
statement at a hearing of the Assembly Judiciary Committee:

“[…]I was contacted by a daycare provider who is a member of
that organization regarding something that had taken place at her facility. She
was very upset because some bounty hunters came into her facility with guns drawn,
looking for someone. They were actually looking for the mother of one of the
children being cared for, and the mother was not the person they were
ultimately after, but they were trying to get some information. The daycare
provider was dismayed to find that their actions were not illegal. It was a
horrible thing that they endured over a significant period of time; it did not
just take place in a few moments. I was surprised when I contacted our Research
staff and found that child-care facilities are not in the statute as areas
where guns cannot be carried.”

Why was this not dealt with at a regulatory level? All this
law would have done is make it so the bounty hunters could have been arrested;
it would not have corrected their poor judgement. Nor would it keep criminals
from bringing guns into child care facilities. Rather, it disarms mom and dad
who come to pick up their kids. Technically, they could be arrested for having
a gun in the parking lot of their daycare. This was a terrifying incident to
the staff and children for sure, and a monumental failure on the part of the
bounty hunters, but not a reason to disarm citizens on private property. Once
again, a Democrat over-reacted and legislators caved in ‘for the children.’

3 comments:

Requiring safe storage for guns at places that prohibit firearms is a genius idea! It's so frustrating having to disarm to begin with, but this would at least make the walk to and from my car safer. I have to laugh because life in some respects would be easier if I was a criminal (and maybe safer too) since I would just ignore all laws and carry my firearm everywhere. Too bad I'm a law abiding citizen...

"Interestingly, Colorado is a reverse of most frontier states and allows for municipalities to ban open carry, but not concealed carry, except in public buildings with security screening and metal detectors. Last year, the Denver Science Museum had to change its policy banning concealed firearms because it lacked metal detectors and security screening as required by law. Denver, under questionable state Supreme Court rulings, bans open carry wholesale, the only municipality to do so."

WRONG! Municipalities in Colorado CANNOT ban open carry! The ONLY reason Denver gets to is due to a hung jury during their "Home Rule" argument in court. Denver can ONLY ban open carry while you are FOOT TRAFFIC in their city. Open carry in the car while in Denver is 100% legal.

Where municipalities which are not Denver have a say in open carry is only in the government buildings. City/County parks and open spaces cannot be regulated.

For private businesses to ban firearms they must have a very specific setup: Metal detectors AND all doors except main exits/entrances locked/ all entrants must be screened AND a sign must be posted in the CRS mandated size within the required amount of distance from a previous one.

I don't know why it's so hard for people to understand Colorado's open carry law.

"A local government may enact an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area within the local government's jurisdiction. If a local government enacts an ordinance, regulation, or other law that prohibits the open carrying of a firearm in a building or specific area, the local government shall post signs at the public entrances to the building or specific area informing persons that the open carrying of firearms is prohibited in the building or specific area."

Local ordinances use specific area to include public plazas and specific open spaces, such as parks. If this is not permissible, there are no opinions I am aware of from the Supreme Court or AG. Facts beg to disagree with you.